Thursday, May 21, 2020

ODR & COVID-19: Guest post from Prof. Stacy Butler (Arizona Law)

[Editorial Note: Stacy B. runs a remarkable legal innovation program at her law school. You can check it out here]

What Covid-19 Might Mean for Online Dispute Resolution

When the Covid-19 outbreak hit, the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law and Pew Charitable Trusts were in the midst of evaluating the usability of the Utah State Court’s online dispute resolution platform for defendants in debt collection cases. Like the rest of the world, we’ve been forced into a full-time remote existence. As we work to pivot our research, we are discovering new challenges and opportunities related to online dispute resolution.

A year ago, before anyone was thinking about the possibility of a global pandemic, approximately 50 county and statewide court systems in the United States were experimenting with online dispute resolution (ODR).[1] Now, in the midst of Covid-19-imposed social distancing protocols, courts are rapidly moving to a “remote court model,” leaning on video- and teleconferences and on-the-briefs decision-making to keep courts in operation, while a backlog of cases builds.[2] Covid-19 is going to force a permanent shift in court processes. As Colin Rule, vice president of Online Dispute Resolution at Tyler Technologies, Inc. writes: “The courts were already struggling with existing caseloads before the crisis, and now they will be burdened with this additional backlog once processes resume. Combined with the huge number of newly laid-off citizens, the caseload in the courts may swell to unprecedented levels, and citizens will not be able to wait years for issues to be resolved.”[3] Increased adoption of online dispute resolution – which promises a court-annexed, public-facing, digital space to resolve disputes quickly – seems imminent and inevitable.[4]

BUT … there are logistical challenges we haven’t prepared for. Courts that have adopted ODR have leveraged in-person contacts to make the transition. In New Mexico, for example, when courts began piloting ODR for debt collection cases, the state judiciary’s communication officer visited local libraries to introduce the program to librarians and leave brochures for library patrons.[5] Those in-person opportunities are no longer available. Adoption, testing and customization of ODR also takes time – time that now seems in short supply as case backlogs grow. Some ODR programs rely on volunteer facilitators/mediators, a service model that may not scale well. And ODR is nascent in the U.S.: there aren’t many well-developed, tried and tested choices for courts. In fact, our project is the first to evaluate the usability of a U.S.-based ODR platform. We are testing questions such as: are information and explanations about ODR and its justification available in a way that all users can find, understand, and act on? Do changes within the ODR platform have an impact on users’ decisions? What impact does changing the user interface design or sequencing of information and features within the ODR platform have on the pathways or procedures that users select and pursue? For now, those are unanswered questions, and a mass onboarding of ODR in courts across the U.S. without answers to those questions is risky.

Prior to Covid-19, Utah was piloting the only home-grown ODR platform in the country, making it available for small claims debt collection cases in three counties. Initial user engagement in Utah’s ODR platform was impressive: of the first 2,000 cases tested in the platform, only 28 users opted out.[6] But our Utah stakeholders recently walked us through the practical reality of how ODR is operating now. Utah’s ODR platform requires the plaintiff to file electronically, and then personally serve the defendant with a summons and affidavit that directs the defendant to the ODR platform. With shelter-in-place restrictions, personal service is not happening. Small claims cases continue to be filed, but not served. Without service, no new cases are moving into the ODR space. Utah is preparing now for the possibility that it may need to automatically extend service deadlines for the cases in this particular bottleneck.

Even if cases are served, there is a real question about whether defendants will respond and log in to ODR. By the time social distancing protocols permit in-person service, the defendant being handed the summons will likely have been unemployed and sequestered for several months, possibly with health issues, while new debts – medical debt, consumer debt, back rent and more – have piled up. ODR is intended to help parties negotiate a settlement, generally one that involves the defendant paying some amount. For defendants facing insurmountable debt post-Covid, where is the incentive to engage?

If ODR fails in the face of these Covid-19-related challenges, the new status quo could be worse than the old. Federal Reserve statistics show that a large share of Americans cannot come up with $400 to deal with an emergency, which means many households are poorly positioned to deal with the financial impact of Covid-19.[7] Absent more aggressive debt postponement/forgiveness policies, debt collection filings are going to increase this year, and defendant responses to debt collection actions are going to decrease. Pre-Covid, a majority of debt collection cases filed ended in default judgments against debtors.[8] Post-Covid, ODR may just grease the default judgment wheel. ODR makes it even easier for plaintiffs to file debt collection actions and obtain default judgments: no physical court appearance required. As default judgment rates increase in the year ahead, we should be measuring whether jurisdictions with ODR in place have higher rates of default than courts without it.

ODR in the time of Covid-19 also presents a serious equity risk: new ODR spaces may develop and launch without the involvement of those who need access to justice the most during this pandemic. In 2017, the National Center for State Courts recommended that, “to glean the greatest benefit, ODR should be co-designed and rigorously user-tested by the public it seeks to serve. Courts must involve the public as key stakeholder participants.”[9] Three years later, we are conducting the first observation-based usability test of an ODR platform in the U.S. to encourage this type of participatory co-design between courts and communities. Before the outbreak, that testing involved in-person engagement with potential ODR users in person, watching them navigate the platform from a smartphone and collecting data about speed and ease of use and user satisfaction. It also included participatory design workshops with the low-income community, engaging them in identifying problem areas within the ODR platform and listening to their ideas about how ODR could better work for them. Now, while sheltering in place, we are working on creative ways to complete our research. There is no substitute for face-to-face engagement with people who need access to our civil legal system. That real-time human feedback provides powerful and meaningful insight into how under-represented populations feel about their civil legal system, what type of access they need, and what features encourage their engagement. Courts were not particularly inclined to apply this type of user-centric design before Covid, and the resource challenges associated with the pandemic diminish the odds that under-represented populations will have a voice in the design of next-gen ODR. And once those platforms go live, only those with the economic and technological wherewithal to participate in the new online forum will be providing usage feedback to courts.

These risks can be mitigated if courts resist Covid-19 urgency long enough to create space and time to be thoughtful about the move to ODR:

Map your processes and bottlenecks: Court closures and case stays vary state by state. Assessment of ODR’s usefulness should begin by identifying whether your court is experiencing a pile-up of cases that cannot be filed, are filed but not served, or are served but not being heard. When barriers lift, will ODR help with those problem areas? Or does your court need to think about ODR for future, post-Covid-19 cases?

What do you need ODR to do? ODR works well for high-volume, low-complexity, low-stakes cases. What backlogs or anticipated incoming waves of court filings could be best addressed through ODR implementation?

Assess your ODR options: There are only a handful of private-market ODR vendors. Understand the features each can offer, and their willingness to customize their platform to your court needs. If they cannot offer what you need, consider following in the footsteps of the Utah State Courts and build your own.

Where in the life of a case should ODR exist? Some ODR platforms are offered to litigants before they file, some are offered after filing. Some require users to opt-in, and some give users the chance to opt-out. All of those options need to be re-evaluated in light of Covid-19. If a court is experiencing a post-filing bottleneck, a pre-filing ODR space may divert new cases and ease pressure on court systems. The challenge will be educating court users during a global pandemic that pre-filing ODR is available. ODR systems that require an opt-out are now going to require increased attention to the procedural fairness of service of process and user onboarding processes.

Don’t let existing court rules and procedures stand in the way: ODR presents an opportunity to improve court processes for the people who need them. Now is the time to question whether rules and procedures created in a low-tech era need to be adapted for the new, virtual world.

Involve your users: The best time to receive input from the potential users of your ODR system is before you launch it. Once the platform is live, changes will be much harder. IAALS offers a simple guide for engaging users in court services here. The Nielson Norman Group, world leaders in research-based user experience, have lots of advice about remote user engagement here. Realistically, courts making an effort to include users in ODR implementation will have limited time, resources, and user-testing experience. For those courts, any user engagement is better than none, so focus on these four questions:

For the case type you are considering, who are your users (plaintiffs and defendants)?

What do you want to know from those users? Think about what your ODR system should accomplish: procedural fairness, dispute resolution, user satisfaction. What needs to work well in your ODR platform for those goals to be met?

If social distancing is still occurring, how can you reach your users? Some will have technology access and could be surveyed or engaged in early prototype testing online. But keep those without technology access in mind – can you reach them by phone? Or can you talk to an organization that can advocate for the interests of that population?

When in doubt, use inclusive design. Microsoft’s inclusive design theory posits that designing for those with permanent disabilities results in designs that benefit people universally. If your court only has limited space and time to engage users in your ODR design, engage your most vulnerable users first.

[4] If China is an indicator of next steps for U.S. courts, as it has been an indicator of most Covid-19-related trends in the U.S., online courts are coming. Seehttp://www.xinhuanet.com/english/2020-02/18/c_138795315.htm (internet courts in Hangzhou, Beijing and Guangzhou had accepted close to 120,000 cases as of Oct. 31, 2019).

Wednesday, May 13, 2020

Wisconsin Supreme Court decision on COVID-19: a quick take

A 4-3 majority struck down the DHS emergency shelter-in-place order. In a remarkably convoluted opinion, sowing confusion at the very least and reflecting the polarization that plagues modern-day law & politics in the great state of Wisconsin.

How so?

First, you’ll see that it is 161 pages. 40 pages is taken up with two concurring opinions which offer a rather extravagant set of claims about nondelegation, separation of powers, anti-administrative state, natural rights, etc., etc. Over-the-top stuff. Read it and (depending upon your priors) weep or cheer.

Second, there is a hard question surfaced by Justice Bradley at the beginning of the dissent and that is whether there are truly four votes for implementing this decision immediately, and therefore without a stay. One of the concurring judges says she would impose a stay. But she joins the majority opinion “in full” (see her fn.1). So, it is confusing whether this is 4-3 or 3-3-1. The answer to this question is of course essential as a practical matter. Maybe this will be unraveled in the next day or even in the next few hours.

Third, the scope of the ruling is narrow, in that four justices note that this order exceeds the agency’s statutory authority – not the governor’s authority, which he could arguably exercise under his emergency powers. On the other hand, we know from the two concurring opinions that these two justices wouldn’t go along with a do-over whereby the governor imposed the order or, alternatively, an order that complied with all the administrative procedures imposed by the statute.

So, this case took a week to come out, and I can see why. They never were able to reach any real agreement about why the order was bad. Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem. Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

UPDATE: As the first comment notes, I mixed up two justices in noting that a concurring justice said in footnote that she joined the majority opinion "in full." This was not the justice who authored the majority opinion, Chief Justice Roggensack. I stand corrected. However, the same confusion remains: What do we do about a majority opinion that says "no stay" with a concurring opinion, issued by the author of the majority opinion, that says "stay?" If I had to choose, I would say that the majority opinion stands on its own terms, and we thereby get to four. But we get there by simply disregarding the CJ's concurring opinion. It's tantamount to "I wish I could have convinced my colleagues to issue a stay, but I couldn't and so I'll just tell you why I am bummed."

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g) to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond. Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment?

Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?

What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?

Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?

If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?

What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?

Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?

How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at [email protected] Preference will be given to completed papers, though works-in-progress are eligible for selection. The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses. Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.

Sunday, May 03, 2020

The new LSAT-Flex being unfurled by LSAC will have one fewer section, Logical Reasoning being reduced from two sections to one. Perhaps this has something to do with the administration of the test as it is being delivered in this new format because of the COVID-19 crisis. Not expressing a view on this change, which we can assume was arrived at after careful deliberation. But is it not odd that the GRE's use continues to be strictly scrutinized by the ABA under Rule 503 for predictive validity while this change is presumably immune from such scrutiny?

I will leave it to others with more sophisticated empirical chops to weigh in on whether this change could affect predictive validity in any meaningful way. Again, credit what the LSAC says in its FAQ section here: These questions to be used have gone through the crucible of careful review. And they say, explicitly, that the test will be neither easier or harder. But this doesn't really answer the question of whether changing the number of questions and the number of sections from four to three can have an impact. The question I raise is principally a process one: The GRE has shown it itself to be have strong predictive validity in myriad different settings (though, to be sure, not all or even most law schools have done their own individual predictive validity studies). Yet schools which would use it, and perhaps with greater urgency because of the current crisis, have significant hoops to jump through. Meanwhile, the LSAC makes its tweaks, on its own initiative, without (as best I understand it; correct me if I am wrong) undergoing the same ABA review that would apply to ETS and its GRE. And if this change is viewed as de minimus, what kind of change in the LSAT would trigger a validity review?

The LSAT-Flex initiative, provided in a remote form, is a positive step forward. What would also be especially positive is if the ABA treats both LSAC and ETS fairly and transparently. I hope it does; the ABA could easily confirm that this is so.

[As I have written on this blog before, I disclose that I have been consulting with ETS on the use of the GRE. Readers will impose whatever discount rate they think warranted because of this fact]

Tuesday, April 14, 2020

A call for a virtual summit on online legal education

This CNN report detailing the Harvard study about social distancing paints a scary picture of social distancing on an continuing basis through 2022. Not continuing shutdowns, but periodic restrictions and, in any event, responsible restrictions on medium to large-group setting business as usual.

Bottom line, our universities and law schools may not be able to function as they did pre-March 2020. Here is another report along these lines. We can push against this predicament; we can surrender to it. My tentative prediction is that we might be somewhere in between, and maybe for three or four semesters worth.

I am not here to debate the public health and regulatory aspects of this, but let us suppose there is something to this ominous situation. Let us suppose that cannot deliver residential legal education for all of the fall and spring semesters for the next academic year.

We are going to need to develop some fundamentally creative and responsible strategies to deal with this temporary new normal. The ABA is not going to rescue us from this, as it will, at most, say something like this: Law schools can put their academic programs entirely online for XX period of time. They will not and cannot make them do so. State bars, as folks have pointed out to me privately, might push back hard against this brave new online world. Just because the ABA gives law schools its blessing for all-online education does not mean that the states are obliged to license graduates who have taken, say, half of their academic credits online. And our faculties are going to rebel even more actively against major adjustments to pedagogical adaptations, especially those that come from the top down. I could go on and on about the problems, but the point, I hope, has been made.

What I want to suggest is that we would do well to convene a big summit, in a virtual form, to discuss comprehensively, tactically, and in a data-driven way, how we might deliver excellent legal education in an online format (entirely, partially, to some of our vulnerable students). Clearly these conversations are well underway in many law schools (I won't hazard a guess at how many). But we need the wisdom of the crowds and collective conversation.

Frankly, I don't really care who convenes this summit. AALS? Sure. ABA Section on Legal Education? OK. I and others can conjure up a list of folks who should have a virtual seat of this table. Folks from within and outside legal education; innovators and skeptics. Educators and entrepreneurs.

We need to do something big. Fingers crossed that the fall will bring relief is not the answer. This strategic endeavor for how to maintain educational quality with fundamentally different pedagogy is a massive undertaking, one that falls squarely under the rubric of worst-casescenario contingency planning. But if are not intentional and inclusive about this conversation, we could find our proud system of legal education imperiled, or at least knocked seriously back on its heels.

Monday, April 13, 2020

More on the Utah bar proposal

Some scattered thoughts, adding to my post last week about the Utah Supreme Court's pending bar proposal, the proposal that permit graduates from law schools with at least an 86% rate of first-time bar takers (in any jurisdiction) to be admitted under the supervision of lawyers as elaborated in the proposal.

First, some of the commentary, including by BYU's dean, Gordon Smith, suggests that this is considerably more generous than Wisconsin's diploma privilege for the two in-state schools. What is missing from this account, however, is a more detailed description of the Wisconsin rule. Wisconsin requires that graduates of the University of Wisconsin and Marquette complete at least 60 (of their 84 required credits) in specified bar-related subjects. There is no such requirement in the proposed Utah rule. This difference is rather fundamental.

Second, any implication in this proposal that graduates will help close the access to justice gap in their work with supervising attorneys is speculative. Readers may recall that this ideal undergirded the New York Court of Appeal's proposal, spearheaded by then-chief judge Jonathan Lippman, for 50 hours of mandatory pro bono work. There is scant evidence that this has moved the needle in New York. Part of the problem, not unexpected, is the dearth of attorneys willing to undertake supervision of students doing this work. We can imagine similar problems in Utah after the adoption of this proposal. On some of the larger issues raised by efforts to yoke bar admission to an A2J rationale, I commend Paul Horwitz's terrific post here (not only for some insights on this topic, but on many other elements of these complex issues).

Third, Derek Muller has a thoughtful post here that, as he notes, comes at the issue from the opposite direction as I did. That is, he worries that the proposal is too inclusive, in that it sweeps many schools whose graduates might not be successful in Utah. This seems to me a plausible and important argument. However, his suggestion that the remedy be to limit the scope of the rule to just BYU and Utah raises protectionist considerations. (And I remain unmoved by the argument that because Wisconsin does something like this, it's not problematic to do this again). Moreover, the fact that a very small number of out-of-state students are affected is small solace to that group. Sure, the supreme court set the cutoff of April 1. But whether they can or will stick to it in the face of what will surely be objections, if not legal action, by individuals who would aspire to become admitted in Utah under these new standards, remains to be seen.

Finally, we should reflect, as I said earlier, on exactly what this proposal means for our state-by-state system as a whole. Coming back to Professor Muller's point, if Utah and Wisconsin give special rules for their in-state schools, what we do make of a nationwide move to do likewise? For those of us who think that the lawyering world is better without artificial borders, this development is unsettling.

Thursday, April 09, 2020

Utah emergency bar order, and the high costs of our bar federalism

The Utah Supreme Court made the important and, as Dean Gordon Smith of BYU notes on Twitter, courageous decision to permit emergency admissions of 2020 grads, under a deliberate set of attorney supervision rules. These rules are in the spirit, even if distinct in some specific, from the supervision rules emerging from a growing number of states (New Jersey, Arizona, Tennessee, etc.). I agree on the whole with this move, not grudgingly, but enthusiastically. To be sure, there are difficult issues regarding lawyer supervision, which I leave to others to probe. Our students need bold leadership in this time of emergency, and Utah here, as elsewhere in the legal innovation space, has taken this compassionate and thoughtful step. And, insofar, as I suspect, the deans of the two excellent law schools in Utah, BYU and the University of Utah, were working hard on behalf of this result, they deserve our kudos for their work on behalf of these future Utah lawyers.

However, I note one of the peculiar features of Utah's rule and that is the privilege is limited to law schools whose aggregate bar passage is at least 86% of first-takers. This clearly covers BYU and Utah, which I will surmise with no special evidence, was part and parcel of the rationale for this particular criterion. However, one of the consequences, which, again, I will speculate was unintended, is to impose a bar on graduates of law schools who take the bar in states where the cut score is high. California immediately jumps to mind. But there are others who would have a difficulty meeting this standard.

As Dean Smith has said on Twitter, we should recognize that this includes a small number of students, that is, students who are already signed up for the July 2020 bar. (I will push back slightly on this just to say that Utah might, if for no other reason than its strong LDS community, draw in a not trivial number of students who have studied elsewhere but look to return to Utah. The University of San Diego, where I had the privilege of serving as dean a long while ago is such an example; so are the law schools in Arizona and UNLV. Anyway, you get the point).

This Utah result flags a larger phenomenon, and that is the rather wide diversity in bar cut scores and the resulting difficulty of reaching any defensible equilibrium on what is a good enough score on which to settle. If other states are going to go down the path of Utah in requiring a bar passage threshold, they are going to face this same conundrum. Some of my dean friends in California might, rightly, see this as another illustration of the particular disadvantage their students confront because of California's high cut rate. Where I would point to is somewhere different, and that is the extremely vexing situation that exists and persists in a world in which all fifty states have their unique rules, rules which at least balkanize legal practice and, at worst, raise the spectre of protectionism. Something for our state supreme courts to think about, now in this period of crisis and emergency.

Wednesday, April 08, 2020

LSAT, GRE, & Law Schools in Crisis: We told you so

Warning: There is some grumpiness in this post, but I hope it won't conceal an important point.

In the summer of 2018, the ABA House of Delegates had before it a thoughtful proposal from the Section of Legal Education which proposed removing the requirement of an admissions test for law school admissions. Law schools, the Section insisted, could be trusted to develop coherent, evidence-based admissions criteria, including the LSAT, the GRE, or another test entirely. As the Law School Admissions Council had become over the years a de facto monopoly on the testing business with the LSAT, the case for flexibility and local knowledge was ever growing. Moreover, slavish commitment to the LSAT was harming diversity goals, by creating an anachronistic barrier to entry. Finally, the haze of quantification embedded in an LSAT score added fuel to the baleful rankings fire.

But a peculiar thing happened on the road to this brave new world. The LSAC, under the politically shrewd (and quite capable in myriad other ways) new leader, Kellye Testy, hit back hard on these efforts, working with stakeholder groups within the ABA and also with the media to tell a story -- a fabulist story -- that painted a world in which law schools would utterly abandon standards of quality to grab anyone with a pulse. Moreover, and this is really strange, Kellye, her board, and other troops she could call upon as the CEO of her large organization argued that diversity goals would be seriously undermined by this effort. Pause for a moment on that one: We know that standardized testing has long been used as a gatekeeping mechanism to keep persons of color from accessing our universities and law schools and, likewise, we know that USNews rankings has that consequence. Yet groups within the ABA devoted to advancing diversity in the legal profession became persuaded that the Section's proposal was a trojan horse of sorts, one that would damage law school diversity by removing the requirement that the LSAT be used.

The political effort to preserve the LSAT and therefore the Law School Admissions Council's principal revenue source was successful, and the proposal, quite likely to be defeated, was withdrawn at the last minute. Neither of the two Legal Education Section delegates were even willing to speak in its favor at the House of Delegates meeting.

Regrettably, precious few law school deans or other legal educators spoke out in favor of this proposal. At the time the dean of Northwestern and the chair of the AALS deans steering committee, I was a vocal advocate, writing and speaking in its favor before and during the ABA meeting. But this was mostly a lonely endeavor. The vast majority of deans either could not be bothered to voice their support in key venues or, perhaps worse, feared the wrath of the LSAC (or else the resources that LSAC leadership none-too-subtly noted were provided to law schools as part of their admission efforts). So, basically Barry Currier, me, and a tiny handful of others. We were no match for Kellye and LSAC. The LSAC won this important battle and, to the victors go the spoils.

So now where are we? The promises of LSAC to bring the LSAT fully into the digital age have not yet borne fruit. COVID-19 has meant that the March and April tests are cancelled. Perhaps some digital version will become available in the near or intermediate future. Or perhaps not. But even if it becomes available, there will be serious questions of its efficacy and its security. Moreover, it will be a different test, as LSAC admits.

Meanwhile, the Educational Testing Service, with lightning speed, has made available the GRE for applicants to take at home. Of course, ETS has been at this digital testing business for a long time, and so was can be confident that this is not a trial run. (At this point, I believe it important to disclose, as I have before, that I have been working with ETS for about four months on its GRE law school strategy. For a rather small amount of money, I am embarrassed to add. But there you go).

Of course, no one saw the coronavirus coming, and LSAC cannot be faulted for not being fully prepared to deal with the myriad issues now before us with the LSAT. However, the larger "we told you so" point remains: Flexibility in testing, constructing a coherent digital strategy, fomenting competition among different organizations providing testing and, lastly, giving law schools permission to use the GRE if they choose to, and without jumping through time-consuming and expensive bureaucratic hoops was a good idea in August 2018. The present crisis puts into sharp relief why.

Law schools are rightly concerned about the stability of their classes for the coming year. In the fall, this will give way to worry about the next year. Whether LSAC will be able assuage these worries by concrete action, in testing and otherwise, is an open question. There is no one whose commitment to the welfare of legal education and our students is greater in my experience than Kellye Testy. But she sits atop an organization that will frankly struggle to meet the needs of law schools struggling now and in the near future with this crisis. I believe that a different outcome in 2018 by the ABA would have set three things in motion: First, pressure on the LSAC to improve their testing process (which didn't happen, at least not with the alacrity that serious competition would have facilitated); second, the growth in the use of the GRE and, with it, emergence of a key stakeholder organization, ETS, which would have been farther along by now with their efforts to support law schools. (They have been inexplicably absent on all the calls, as I understand it, the ABA, the AALS, and law schools have had -- set up through the LSAC's conference line, as I understand it); and, finally, law schools would have much more flexibility to consider student applicants at this late date and also next year, without being forced to continue in the current testing regime.

Politics matter. The politics underlying LSAC's masterful efforts to maintain its near monopoly led to the unfortunate situation we are in. I hope deans and other legal education leaders will heed these lessons.

Tuesday, April 07, 2020

Texas COVID-19 abortion case

Interesting and important abortion case decided today by 5th circuit. Basic issue is whether Governor Abbott's suspension of elective abortions is constitutional under the standard imposed by Jacobson, an early 20th century case involving quarantines. Here is my quick take (re-posted by epidemiclaw listserv).

Framing of the Jacobson issues by the majority seems correct. Yes, a case that gives very wide berth to state d-makers, under the rubric of broad police power. Emergency health conditions do not suspect civil rights & liberties, but do put them in sharp relief up against exigencies of the time. And state officials are given great deference. (see In re Abbott for the money quotes);

Focus on the “error” of the district ct in characterizing this as an “outright ban” is a red herring. It is, for all intents and purposes, a permanent ban on elective abortions otherwise squarely protected by Roe. All the post-Roe caselaw on appropriate burdens doesn’t deal with restrictions that essentially run out the clock on the availability of elective abortions and therefore the exercise of constitutional rights;

Time-sensitivity cuts in both directions, which is why the case is so challenging. Burden on the Texas health care system is a matter of fact. Court comes close to taking judicial notice of the COVID-19-related burden or else just taking the Governor’s word for it. But, bottom line, no one can seriously doubt that Texas health care system faces extraordinary demands. This question, not at all present in Jacobson or other cases, is how to evaluate these demands in light of constitutional rights. The pregnant woman is not a threat to health & safety directly, but just indirectly in the (putative) burdens she places on health care system;

Important issue noted by the dissent is that the pregnant woman imposes burdens in any event because of prenatal care, etc. Presumably Texas has not suspended that! So the question is what is the incremental burden. This is a medical question, about which the court seems rather ill-equipped to assess;

Majority acknowledges check on police power for “extreme cases.” Majority in In re Abbott defines these cases as relating to the health of the mother, not as related to exercise of constitutional rights. Is this the right way to look at it?

Court: “We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so.” What does this mean???

The court waves away pretext argument. And perhaps properly so, given how difficult, if not impossible, it is to gather evidence on this point. However, in the real world in which we live, it is conspicuous that anti-Roe states are lining up to impose these restrictions. That is the fundamental “law in action” point in all this;

Writ of mandamus is, indeed, an extraordinary writ. But no thumb on the scale apparent in the court’s opinion against exercising this extraordinary discretion. Do we have post-Jacobson caselaw that sheds light on what we ought to do with mandamus petitions?

Dissent emphasizes that health restrictions in Jacobson were public-health related. But this misses the point of the majority. Here, too, the case stated by the governor, and accepted by the majority, for the restrictions is health related. Question is how to balance this with rights;

In a profound way, the strength of the dissent’s argument about the temporary nature of this ban depends upon a crystal ball. How long will the crisis last? I am aware of no constitutional law case that is so utterly dependent upon states of the world decoupled from either the efficacy of governmental choice or the magnitude and measure of the constitutional right.

Friday, January 03, 2020

Taking states seriously: new frontiers of public law

One of the most interesting and revelatory new connections I forged during my post-decanal sabbatical adventure was with Mr. James Tierney. Teaching currently at the Harvard Law School, Jim is the former attorney general of Maine -- and not just any AG, but someone who has been described as "America's 51st attorney general." Passionate, brilliant, and energetic, Jim is an evangelist for curricular attention to state public law. He explains, rightly, that most of our students will become deeply engaged, in one way or another, with state and local legal institutions. These institutions (take the state judiciary as just one obvious example) function in the long shadow of state political institutions. Lawyers permeate these institutions and the work of lawyers on behalf of clients, whether for private pecuniary interest or the public interest broadly defined, is deeply enmeshed into state legal and political structures.

To the end of enriching student learning, both doctrinal and experiential, Jim and a number of other resolute colleagues have developed meaningful courses in this space. State constitutional law, which is experiencing a nice renaissance, and local government law are obvious examples. Less obvious are traditional courses which would benefit from such exposure to the work of, inter alia, the state executive branch and also the network of relationships among state agencies, state courts, and general purpose local governments. Students could (and perhaps should) be exposed to these issues in the first year private law core, including torts, contracts, and property.

Tierney, who has walked this walk at Columbia and Harvard Law Schools, among others, has also developed a web of resources for current state AGs. The stateag.org site, linked here, gives one a flavor of a rich bevy of programs and initiatives that assist state lawyer-leaders and also communicate, and not too subtly, the message that understanding the mechanisms of state government is increasingly important.

At the level of tactics, we ought to look for ways of connecting these professional opportunities with law school curricula, and even academic scholarship. There is, of course, imaginative and sophisticated work in local government law, some of which connects to state public law themes rather directly. And state con law, as mentioned above, is an active scholarly field with good growth potential. What Tierney's initiatives, propelled (as I can testify first-hand) by a remarkable lawyer with boundless energy, point to is a marriage between ambitious public law academics and their law school homes on one side of the aisle and seasoned AGs and other public officials who are committed to working within the domain of academic culture to fertilize this field of state public law.

Thursday, January 02, 2020

2020: The Year of Regulatory Reform in Legal Services? (And how the law professiorate might help)

The last eighteen months or so has brought an enormously interesting, and potentially quite impactful, stew of proposed regulatory reforms in the legal services delivery space to the fore. Efforts in Arizona, California, and Utah have been especially notable, and other states are wading it as well. The ABA Center for Innovation, whose council I have the privilege of chairing, has proposed a resolution that applauds this process of experimentation, focusing on what it represents for potentially enhancing access to justice, and calls for a greater collection and analysis of evidence of these reforms' impacts. (Text of the resolution and report here). Moreover, the Institute for the Advancement of the American Legal System (IAALS) has embarked on an ambitious project entitled "Unlocking Legal Regulation," the gist of which is a comprehensive look at the state of legal regulation.

For those new to these developments, here are some valuable resources:

Some general commentary on these developments by Jayne Reardon in Illinois, Andrew Arruda of California, a member of the Cal task force, and Zachariah DeMeola of IAALS. Also, the Innovation Center has a website detailing the current regulatory landscape.

As with any spate of experiments, there will be advances and setbacks. The legal profession is a profoundly conservative one, and there are myriad headwinds -- some borne of protectionist impulses and strategies, and others of skepticism more well meaning (and thus credible) in its contours -- facing these reform efforts. Utah is perhaps the furthest along this road, with Arizona coming quickly behind. The California efforts, potentially the most significant, given the state's size, have faced great opposition by lawyers within this state, and it remains to be seen whether some of the tremendous work of the state bar task force will bear fruit in the coming months. So, in all, 2020 is shaping up to be a most interesting year with regard to fundamental change in how lawyers and legal services are regulated.

Law professors have not typically been at the vanguard of these movements. (With important exceptions, to be sure). Yet, these reforms are of an enormous potential significance to our graduates, our current students, and therefore to our law schools. How can we engage in these efforts beyond watching patiently as matters unfold? A few thoughts:

Consider programs and projects which seek to connect the dots between the present structure of legal services regulation and access to justice considerations. Reform evangelists tout the connection between ambitious changes and enhancing A2J; skeptics insist that these connections are tenuous. Surely the matter is a complicated one; and, to be sure, we won't truly know these impacts until and insofar as we can develop some natural experiments in the U.S. context and therefore measure impact over time. Law professors, especially those with expertise in these substantive topics and, as well, good empirical chops, will be in a great position to speak and do scholarship on these issues. Some of this is already happening. (Check out this program at Arizona, just for example);

Where law profs have confidence in the value of certain reform proposals -- for example, permitting non-JD holding professionals to provide certain legal services or permitting alternative business structures for law firms in order to raise new sources of capital --, advocate in various fora for the implementation of these reforms. This could be especially valuable in those states which are currently focused on these reforms and where law profs at state law schools are called upon for their input. I know, for example, that the deans of the law schools in Utah and Arizona (along with key colleagues have been especially valuable interlocutors in these discussions;

Build bridges between law schools and their alumni so as to collect good data about lawyer performance and the current state of legal services delivery. Sure, there are omnibus groups, such as IAALS, the ABA Innovation Center, the American Bar Foundation and the like who can and should lead these data collection efforts. However, law schools can be especially useful to this reform process by sharpening the focus on law school-specific cohorts, surveyed with care and evaluated over time, in order to illuminate the challenges and achievements of these lawyers and how the structure of legal services regulation has impacted their advocacy and counseling work.

There are undoubtedly more bullet points to add here. My main message is that there is great ferment in the area of legal services reform. Our colleagues who work on legal ethics/professional responsibility are especially knowledgeable in this space. But expanding the legal academy's focus outward from there, drawing in colleagues in areas such as administrative law, corporate law, law & technology, empirical legal studies, and state constitutional law (among other areas) would help enhance understanding. And a fruitful byproduct would be to show how law professors can add value to practice-related debates by their scholarship, their teaching, and their convening skills.

Tuesday, December 31, 2019

Karen Daniel, RIP

The sudden, tragic death of our Northwestern colleague, Karen Daniel, has hit hard not only our law school community, but the wide community of individuals and organizations devoted to criminal justice work, especially in the area of the wrongfully accused. Karen's professional life was focused like a laser on impactful litigation and advocacy. Brought to Northwestern several years ago by Larry Marshall, one of the founders of the Center on Wrongful Convictions, Karen established an important practice in this space, working with talented lawyer-teachers and mentoring many students. As dean, I appointed Karen and Jane Raley co-directors of the CWC. (This was a no-brainer decision, I hasten to add, but one of which I remain proud). Jane passed away on Christmas Day five years ago; Karen soldiered on; and the CWC continued its heroic work. Because law school politics are what they are, some colleagues always looked with some skepticism at the CWC's large role in the curricular ecosystem of our law school, wondering whether the project had become in some way outsized. But, reflecting back on this recent difficult period, I feel liberated enough to say that this perception misses a larger point, and that is that the CWC's contributions, and Karen's, ought not be measured simply by the number of students in the courses and the per-student costs of the program. Rather, the CWC (by which I mean also to include the programs focused on youth and on women specifically) s a jewel in the crown of our Bluhm Legal Clinic and Northwestern's law school because of what it did and also what it represented -- as a foundational project of justice seeking in a profoundly unjust world.

I will always remember Karen Daniel as a key, and truly irreplaceable, piece of that mighty, and hopefully enduring, foundation.

I will also remember a plane ride I took with Karen several years ago, after I had appointed her to the CWC co-directorship. In the bureaucratic miasma of a large, complex law school, I more often than not neglected to get to know in a broad and deep way many of my colleagues. As dean, I took some neglectful shortcuts, figuring that the public bios and encomia from colleagues enabled me to learn enough to make faculty-related decisions. This made the opportunity to connect more with colleagues all the more meaningful. By happenstance, Karen and I found ourselves sitting next to each other in a trip returning (if I recall correctly) from a AALS meeting in Washington DC or New York. In that trip together, I discussed with Karen her professional journey and her work in our Clinic. Talking about teaching and advocacy, Karen constantly returned to the humans involved -- the clients, the exonerated individuals, their families, their challenges, their meaningful lives. Her passion was always close to the surface; and I was moved by her words and the life force in this modest lawyer-teacher. Others at our law school knew Karen better and for longer; but it was a privilege to have this window into the incredible work of one of my remarkable colleagues.

Words will of course fail at communicating the measure of this tragedy. So much left to accomplish, as a teacher, an advocate, and a friend. But I know well that Karen Daniel's legacy of service and accomplishment within and outside of our community is forever secured and, as I believe deep down she would want to say, our redoubled commitment in our law school, the legal academy, and the criminal justice community to the profoundly important work of CWC and other impactful organizations, is the true legacy of this life very well lived.

Wednesday, August 07, 2019

Legal innovation website -- a valuable new resource

The ABA Center for Innovation (whose council I chair) has collected information here about regulatory innovations in legal services delivery. This includes, but is not limited, to lawyer regulation and various reforms to the Model Rules. The picture painted is of a large amount of business as usual, with some tantalizing examples of forward-looking reform efforts.

Among other contributions, this legal innovation survey should be of value to legal scholars looking closely at issues of access to justice and the delivery of legal services in the contemporary U.S. Much more careful research in this space is required and the data provided here is one important step in facilitating such research.

Shout-out to the Open Society Foundation which supported this project financially.

Saturday, August 03, 2019

Administrator bias and legal frameworks

The larger questions of which this article is a part are not at all new: How ought we to think about the sacred principle that We the People are entitled to an open-minded, neutral decisionmaking in administrative agency decisionmaking -- especially in the context of administrative adjudication, but even on occasion in rulemaking? Should the principle be different in the regulatory context than in the traditional courtroom, given unique features of the administrative state? Lon Fuller famously opined on this question in "Forms and Limits" and Judge Friendly's famous unpacking of the requirement of "some kind of a hearing" furthered helpfully the discussion in an earlier era.

Although my paper doesn't address, except in passing, this issue, there are some important reasons to reconsider the entire matter of administrator bias, both at the level of principle and of administration, given the rise and impact of machine-learning mechanisms in the regulatory administration context. Discussions of algorithmic bias is all the rage, and rightfully so. My hope is that we can tie together more ambitiously the deep questions underlying discussions of AI, its promise and pitfalls, to ubiquitous issues of bias, interest, and influence as they have arisen in the doctrinal context for a long while in administrative law. That, in any event, is the more global question of which this paper is a small part.

Friday, March 02, 2018

The Futures of Legal Education: A Virtual Symposium

ith the blessing of the Prawfsblawg lead editors, I am pleased to present an interactive symposium on the wide lens topic of “the futures of legal education.” Reflection upon this issue is always welcome, and underway daily in various forms and fashion. The impetus for this particular discussion is an interesting series of posts at the new year by Prof. Michael Madison of the University of Pittsburgh. Here are the posts: Part I, Part II, Part III, Part IV, Part V.

You will see that this Madisonian (!) missive is principally a call for engagement among myriad stakeholders on the critical issues of “what must be done?!” This symposium for Prawfsblawg engages one key stakeholder group, law professors. A number of professional colleagues from a diverse range of schools and backgrounds have kindly agreed to take part in this symposium. They are:

Robert Ahdieh (Emory)

Luke Bierman (Elon)

Douglas Blaze (Tennessee)

Megan Carpenter (New Hampshire)

Dan Hunter (Swinburne, Australia)

Harold Krent (Chicago-Kent)

Scott Norberg (Florida International)

Jerry Organ (St. Thomas)

Hari Osofsky (Penn St.)

Deborah Merritt (Ohio St.)

Michele Pistone (Villanova)

Frank Pasquale (Maryland)

Eduardo Penalver (Cornell)

Gordon Smith (BYU)

Kellye Testy (Law School Admissions Council; U. Washington)

Mark Tushnet (Harvard)

Michael Waterstone (Loyola, L.A.)

Mike has provided a short paragraph to help in framing the symposium. I include it here in verbatim:

Symposia can be both provocative and useful, but talk can be cheap. What follows the talk? I have been frustrated for years by the dis-connected and siloed character of future-oriented conversations among both academic lawyers and legal professionals. Like many of us, I see lots of silos: elite silos and non-elite silos; student-centric silos and practice-centric silos; bar-related silos; legal tech silos; US silos; access to justice silos, “it’s the economy, stupid” and scholarly silos; incrementalist silos, etc. I am simultaneously a little crazy (perhaps) and speculative (to be sure) in my optimism that there is a constituency out there for larger-scale, longer-term, deeply-rooted, integrative thinking and acting. My posts in late December were the products of several years’ worth of conversation and reflection. I think of them as calls to action. Thanks in advance to all who will post here and elsewhere and who will, I hope, carry our shared ideas forward in yet-to-be-determined ways.

Please be on the lookout for symposium posts as they appear this month. While the comment feed will remain closed for this symposium, readers who have a particular reaction which they would like to share as a comment, please send to me directly and I will post them as I think appropriate.

Wednesday, December 20, 2017

Northwestern Law -- Deanship

I say this unequivocally from the vantage point of someone who has had the privilege of serving in this role for now six years. The job announcement fills in much of the detail and, of course, has a nice pitch. It bears a close look. I would add this: Our law school has been steadily building a reputation for serious innovation in education in a dynamic world, one in which our graduates will need skills to enable them to prosper at the intersection of law, business, & technology. To that end, we have been collaborating actively with our renowned business school, Kellogg, our Engineering and Medical Schools and various other parts of our major research university. Moreover, we have established key partnerships with innovators and entrepreneurs in the law-tech space (ROSS intelligence, for example, and also the ABA Center on Innovation). Law is changing rapidly, and legal education is changing along with it. Northwestern is forging a path toward innovation within the ambitions of elite legal education and multidisciplinary instruction. Exciting to be a part of this; and I am truly excited about the next era under able new leadership.

And because this is a law professors blog, I should add that we have a terrific faculty, filled with extraordinary teachers and scholars, with special leadership in the area of empirical law studies. And we have one of the largest, comprehensive, and renowned clinical programs in the nation.

So, within the next month roughly, the powers that be (not including me, to be sure!) will be collecting and vetting nominations. I urge you to consider nominating exemplary legal educators and also considering this opportunity yourself. I would be pleased to chat privately with folks about this opportunity. Just drop me a note).

Friday, August 11, 2017

In This Week's News: Some law schools accept the GRE. Conservatives' heads explode.

To a certain breed of conservatives, even the term "diversity" is a red cape in front of a bull.

How else to explain this bizarre headline, and the unfortunate article more generally, to Georgetown Law Center's announcement that it will start accepting the GRE as an alternative to the LSAT. Northwestern made this announcement just before, joining Arizona and Harvard in the group of law schools (presumably to expand) to consider the GRE as one alternative test to the LSAT in evaluating law school applicants.

From that, we get treated to a polemic about how this move represents the decline of western civilization -- or, at the very least, the decline of law schools' commitment to admitting highly-qualified students.

We can and should debate the complex question of law school testing and, with it, how best to evaluate the skills, credentials, and experience of students to law schools. Yet, the argument we made, along with the other law schools who have announced this move, have precious little to do with an end-run around standards and quality. Nor do any of us presume that applicants-of-color are unable to achieve success either on the LSAT or in law school or in the profession. Rather, we said, and we mean, that we are looking to expand the pool of interesting, talented candidates, especially from STEM fields, who might view the strictures of the LSAT -- the narrowness of the test, as well as the procedures by which it is administered -- to create a disincentive to considering law school. Nothing here about lower standards; indeed, nothing here about the quest to, in Professor William Otis' extravagant words, "adjust the student body to reflect the ethnic makeup of the electorate."

So, to Ward Connerly, Prof. Otis at Georgetown, and others, keep moving along folks, there's nothing to see here.

Friday, June 23, 2017

The exodus of high-band LSAT students

It describes the big decline in applicants in the high band of LSAT scores. Of course, these are the students who would be admitted to top law schools and/or strong performing law schools with significant merit scholarships. In short, the most sought after students are saying "no thanks" to law school.

This is one of the two big, and often neglected, stories in contemporary law student enrollment & recruitment. (The other is the spiraling discount rate resulting from the increasing arms race among reasonably well-resourced law schools for a smaller pool of students).

The AALS has embarked on an ambitious "before the JD" study to explore how college students and graduates are thinking about law school and the prospects for success (on many relevant measures) in the profession. Presumably other investigations, some empirical, some more speculative, are underway. Without claiming that the high band exodus is more important to consider than other phenomena at work in applicant and enrollment patterns, it is an interesting question nonetheless. How do students who would, ceteris paribus, come to law school with less debt and/or more professional choice still move away from law school toward other options, educationally, professionally, or otherwise? It his a story about obstinate law schools? About the success of greater transparency or, if you want to see it this way, anti-law school invective? Or about the state of the legal profession?

These are questions which obviously loom large for those leading and working in law schools. Yet they are also relevant if and insofar as one believes that a robust legal profession and a continuing commitment to the rule of law and access to justice depends upon very accomplished college graduates seriously considering legal education. Even if one is highly critical of students choosing law school, we should better understand why students do or do not make this choice. Plenty of folks have a dog in this fight and so we need not feign pure objectivity. But we can agree that data and empirical analysis is warranted and timely so ask to illuminate these important issues.

Tuesday, June 20, 2017

SCOTUS: Partisan gerrymandering case from Wisconsin

Two cheers for the Court's decision to hear this closely watched case.

First in Davis v. Bandemer in the 80's, and later in Vieth, the Court has flirted significantly with a big ruling limiting the power of state legislatures to engage in reapportionment for what is plainly partisan political motivations. The caution has stemmed, broadly speaking, from two concerns: First, the meta-question of whether a political motivation, one which generates results that lock in partisan results is inconsistent with our constitutional democracy, and in a way that can be located in a responsible interpretation of the Constitution's text and judicial precedent; second, the question which loomed so large for the Court before Baker v. Carr and articulated so memorably by Justice Harlan's remark in Colegrove about this "political thicket," and that is the matter of remedy and redress.

A slender majority of the Court, and surely a much larger majority of academic commentators, view the first question as answerable in the affirmative. The line of cases from Baker and Reynolds summarizes the basic theoretical underpinnings of this reasoning. It is tempting to see this, sharpened eloquently by influential scholars such as Rick Pildes, Sam Issacharoff, Pam Karlan, and so many others, as a salutary antidote to partisan lock-ups and what I would call, clumsily, bad partisanship and deleterious polarization. Yet, what seems to drive the Court's cautious foray into this thicket is not a comprehensive, or even coherent, view of partisanship and democracy, but a borrowing from the Court's Voting Rights Act jurisprudence and, in particular, a sharp focus on dilution and the fundamental right to have one's vote adequately influential.

Into this conceptual lacuna comes the shrewd and timely contribution of Nick Stephanopoulos and Eric McGhee in the development of the "efficiency gap" measure for unacceptable partisanship, the details of which are nicely summarized by the Brennan Center here.

What remains incomplete, however, despite a generation's worth of important scholarship on this complex subject is the big picture of how partisan gerrymandering's vote dilution is the same threat to equal protection as articulated in the "one-person-one-vote" cases. We know well from the "efficiency gap" argument that there is dilution and it can be measured effectively; but we need to know why this kind of dilution is objectionable on a rationale which sounds in equal protection, and as articulated by Justice Brennan and the Warren Court in the heyday of this jurisprudence. True, the analogy between dilution here and in the VRA context is a strong one; yet, the VRA has a different history. Racial spoils and Jim Crow undergirds its history; political spoils and strategic partisanship has a different history, and it takes a stretch to connect the two by anything other than an analogy.

And, of course, the matter of the remedy looms especially large -- indeed, perhaps too large to sway Justice Kennedy in the end. We knew what to do in Reynolds; and the VRA gives us a template for how to think about remedying unacceptable discrimination. But can we truly get our arms around a constitutional jurisprudence that sorts and separates good from bad politics? Can this coexist with our system of federalism in which the fundamental choices are made locally and by elected politicians who are, for better or worse, ambassadors of partisan advantage and party leadership?

Monday, June 19, 2017

ABA accreditation regs: proposed adjunct rule rollback

The Council on Legal Education has out for public comment a significant proposed change to its regulation on the amount of teaching non-full-time faculty a law school can do. Under current rules, there is a significant cap -- no more than one-third of all student contact hours (credits) -- on teaching by adjuncts. This rule has been a longstanding thorn in the side of law schools which might otherwise increase the number of lawyers, judges, and other qualified professionals teaching their law students.

This regulatory rollback is an idea whose time has come. The rollback would be a meaningful improvement in legal education. This is so in three ways:

First, this revision is another step in what has been a salutary, and frankly rather unexpected, shift in focus on the part of the Council from input measures to a focus on outcomes. The empirical basis for the idea that student learning is improved by a heavy-handed cap on the number of courses taught by part-time teachers is thin -- indeed, I am not aware of any law school-specific study that tests the claim that full-time residential faculty are superior to adjuncts upon criteria that matter to student learning and professional training. By looking at outcomes (as does the other proposal before the Council this round, that dealing with bar passage), the ABA is looking at the right question -- what is the connection between teaching staff and educational outcomes? To be sure, a career as a full-time residential faculty on the tenure track has given me confidence (perhaps, candidly, a bias) that students benefit from close quarters mentoring by legal educators who have made a professional investment in learning and improving our craft. Moreover, I would expect that many, if not most, law schools would continue after this revision to staff their faculty with residential faculty (whether or not on the tenure-track) in order to create a learning community and to engage in serious legal scholarship with individuals who have the skills, inclination, incentives, and time to do exactly that. However, law schools who look to the bench and bar to provide valuable courses, especially but not limited to experiential learning/skills-based education should be given that latitude. This is what a growing number of students say they want; this is what the profession is demanding.

Second, the issue of law school cost looms large. Creating the space in which law schools can make economically sensible choices by allocating teaching credits to adjuncts whose professional circumstances allow them to teach for very little is a move in the direction of reducing the fixed costs of law schools and thereby passing the benefit onto students. Notice that this rollback does not implicate the separate and difficult question of whether and to what extent law schools should hive off tenure-line faculty, replacing them with full-time residential faculty who come cheaper. The capacious definition of full time residential faculty in 403 makes this issue orthogonal to the question of adjunct teaching; in other words, you can satisfy the existing 403 with tenure-track or non-tenure-track faculty. But what an expansion of the adjunct curricular space does is to give law schools room to make an economic decision which is significant and potentially beneficial to students whose financial predicament is severe. Once again, the shift from inputs to outputs portends a meaningful shift in the direction of law school efficiency. Whether and to what extent this efficiency is purchased at the price of sound pedagogy is ultimately a question for the marketplace, that is, for the law schools who consider carefully this tradeoff.

Finally, there are good reasons to believe that removing the mechanical shackles on adjunct teaching will encourage innovation. In a world in which traditional lawyering bumps up against the dynamic shift toward more synergistic, de-siloid professional training, and in which lawyers will need and want to work at the intersection of law, business, and technology, it could make sense for an innovative law school to decide that professionals deeply embedded in this brave new world might have much to offer for their law students. We should note the fine print in the 403 rollback: The foundational first-year courses remain subject to the rule that full-time faculty provide the bulk of the instruction, this acknowledging (sensibly, in my view) that the curricular core should be taught by faculty members who are immersed in the serious study of law as a coherent discipline and will invest themselves in students' foundational learning. What relaxing the adjunct rule does is to create potentially exciting opportunities for law schools to benefit in the second and (especially) the third year. New courses in, say, law & technology, business planning, entrepreneurship, law firm organization, applied legal ethics, judicial decisionamking, etc., would likely profit from an experienced cadre of practicing lawyers, judges, and even folks outside the law altogether. At the very least, wouldn't we want to see this as a natural experiment?

The ABA Council has heeded the call toward more innovation and, likewise, for revisiting command-and-control regulation. This call should be applauded, here in the context of 403's adjunct rule rollback.

Tuesday, June 06, 2017

Master of Science in Law

On the Faculty Lounge is a report of a new Master of Science of Law initiative at the University of Maryland. Pleased to see this. At Northwestern Pritzker School of Law, we are beginning the fourth year of our MSL program for STEM professionals. There have been various news items on this unique program during its short life span. Check out this podcast for a good overview. Here is the MSL 360 blog. And here is a Chronicle of Higher Education article which puts this and related initiatives into a broader context.

At fall enrollment, we will have had over 200 students in this program, on a full-time and part-time platform. The students come from a variety of professional and educational backgrounds -- bench scientists, technology managers, post-docs in various fields, including biotech, engineering, nanotechnology, etc., and pre-med students. Many are international. They are racially and ethnically diverse, more so than our JD class. Graduates of this program have gone into terrificly interesting careers, in law firms, high-tech companies, big corporations (including interesting jobs in the sharing economy), health care organizations, consulting firms, etc. A handful have pursued additional education, in Medical School, Business School, and Law School.

Paul Horwitz in his comment to the Maryland post inquires rightly into the purpose of these programs, adding a bit of skepticism, which is fair, given the emerging multiple mission of law schools in the difficult environment. I will say on behalf of our program, this:

We view our MSL as grounded in a vision of professional work in which the traditional silos among law, business, and technology are eroding, and in which T-shaped professionals can and do work constructively with multidisciplinary skills. Our MSL courses (and there nearly 50) are open only to students in this program; so we are not using excess capacity in law courses for these students. The faculty for this program includes full-time law faculty, teachers from other departments at Northwestern, including Kellogg, our school of engineering, and elsewhere, and expert adjunct faculty. There is ample student services and career services support.

What is remarkable about this program for the Law School generally is that these MSL students are well integrated into the life and community of the student body. JD students benefit from the presence of these STEM trained students; and the MSL students benefit from working with and around JD students. They participate in journals, student organizations, and myriad intra and extra curricular activities. We have experimented with a few courses, including an Innovation Lab, which brings MSL students together with JD and LLM students. This facilitates the kind of collaboration which they will find in their working lives.

The future of legal education? I won't hazard such a bold prediction. But I am confident in predicting that you will see more programs like ours -- the first of its kind, but far from the last. Other programs will fashion initiatives that are unique and appropriate to their mission and strategies. This new model of multidisciplinary professional education is built on sound educational and professional strategies. It is feasible, financially viable, and responsive to the marketplace. Isn't that what we want and expect out of legal education in this new world? Whether and to what extent one or another law school looks to an MSL simply to raise revenue -- as Paul hints in his post -- is a fair question to investigate. But I can say about our program that its principal purpose is to deliver education to a cohort of STEM trained students who are entering a world in which law, business, and technology intersects and interfaces. I suspect Maryland's program, and others in the planning stages, have a quite similar orientation and mission.

Monday, May 01, 2017

Law-STEM junior scholar conference. Papers wanted!

INAUGURAL JUNIOR FACULTY FORUM FOR LAW AND STEM

University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

Call for Papers

The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford. The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017. The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum. The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field. Potential topics include (but are not limited to):

Artificial intelligence

Assisted reproduction

Autonomous vehicles

Bitcoin and other blockchain technologies

Computational law

Customized medicine

Epigenetics

Genomics: Human and Non-Human

Machine learning and predictive analytics

Nanotechnology

Neuroscience

Online security and privacy

Regulation of online platforms

Robotics

Smart contracting and automated analysis of legal texts

Stem cell research

Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented. Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation. Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years. American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007. We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria. Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible. Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.” The deadline for submission is Friday, June 9, 2017. Please remove all references to the author(s) in the paper. Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls. Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at [email protected].

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Tuesday, April 25, 2017

Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that). No special knowledge or authority from me of course, but just one law prof's opinion:

1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing. Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer. So, the effort is an important one;

2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines. Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch. Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?

3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups. I, too, worry about that. On a professional level. On a personal level. From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action. But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands. Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one. And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;

3. Thanks to the efforts of many educators and associations, there is progress in this direction. And we should both note it and applaud it. For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity. This is not just a "California problem," but is a problem more generally for our professional nationally;

4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"

5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity. I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;

6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance. Both law schools maintain that this broadening criteria for admission will help with access. Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.

Alongside these very constructive reforms, danger looms large. The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.

But not to meander to far from the point: The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development. I joined a letter from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support. That is not inconsistent with the position in favor of more accountability. And, indeed, the revised standard on the table is to me clearly better than the status quo.

The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability. Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.

Sunday, April 23, 2017

The hubris of the unknowing

Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.

I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role. I am not an alumnus, nor am I affiliated in any way with the university. Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.

But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.

What makes knowledgeable professionals so confident that they would quickly rush to judgment? Whittier's sudden closing is obviously a tough thing for current students and faculty. Perhaps the decision will be unraveled in the face of public pressure or via littigation. Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle. Perhaps bloggers should neither aid nor abet these efforts.